“Throughout history, it has been the inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph.”
Haile Selassie

Monday, June 30, 2014

Left Loses Battle in its War on Religious Freedom

Over the past few years, I have witnessed those on the left side of the political spectrum become increasingly hostile to religious freedom. Those liberals seem to hold the position that religious freedom protected by our Constitution only applies to the right to worship at the church of one's choice. Once a person leaves his or her place of worship, lireligious beliefs must be locked away and only brought out again during next week's services.

Barbara Green, one of the owners of Hobby Lobby

While Democrats tout a phony "War on Women" those on the left are conducting a real "War on Religion." Today, at the United States Supreme Court, those who oppose religious freedom lost a battle in that war.

It was actually a very easy case. The case centered on the Religious Freedom Restoration Act. Wikipedia has a surprisingly accurate description of the RFFA:

This law reinstated the Sherbert Test, which was set forth by Sherbert v. Verner, and Wisconsin v. Yoder, mandating that strict scrutiny be used when determining whether the Free Exercise Clause of the First Amendment to the United States Constitution, guaranteeing religious freedom, has been violated. In the Religious Freedom Restoration Act, Congress states in its findings that a religiously neutral law can burden a religion just as much as one that was intended to interfere with religion;therefore the Act states that the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”The law provided an exception if two conditions are both met. First, the burden must be necessary for the “furtherance of a compelling government interest.”Under strict scrutiny, a government interest is compelling when it is more than routine and does more than simply improve government efficiency. A compelling interest relates directly with core constitutional issues.The second condition is that the rule must be the least restrictive way in which to further the government interest. The law, in conjunction with President Bill Clinton's Executive Order in 1996, provided more security for sacred sites for Native American religious rites.[3]

The law restoring religious freedom passed unanimously in the Democratically-controlled House in 1993 and nearly unanimously by the Democratically-controlled Senate. Democratic President Bill Clinton signed it into law. It's hard to believe how much more anti-religious the Democratic rank-and-file are today compared to where the party was just 21 years ago.

The Hobby Lobby case involved the application of the RFFA to a private, family-owned, albeit incorporated, business. The owners, members of the Green family are Mennonites whose religious belief is that life begins at conception. Of the 20 types of birth control covered by the Affordable Care Act, four are abortifacients, methods of birth control which don't prevent contraception but rather prevent a fertilized egg from implanting in the womb and growing. The Green family members objected to the ACA requring that they pay for abortifacients in the health insurance policies they offer to their employees.

The majority opinion, written by Justice Samuel Alito, takes a very clear approach to applying the RFFA to the case at hand. Justice Alito wrote that there is no indication that Congress intended to exclude the owners of corporations from the RFFA, then proceeded to make the conclusion that the mandate substantially burdened the Green family's religious beliefs. Following that determination, Justice Alito applied the other two parts of the test, whether the law serves a compelling interest and whether there were less restrictive means of furthering that interest if it does exist. Justice Allito's opinion was particularly strong in pointing out that there were a number of alternatives to the contraception mandate that Congress had made available to others, such as religious institutions and non-profits.

Unfortunately the dissenting opinion, written by Justice Ruth Bader Ginsburg, and joined by three of her left-leaning colleagues, doesn't being to match the in depth analysis of the RFFA offered by Justice Alito. It is clear Justice Ginsburg doesn't like the outcome from a policy standpoint, but she fails to make a persuasive case that Justice Alito's dispassionate application of the RFFA to the facts at hand are incorrect. This should have been a 9-0 or 8-1 case and the fact it was not demonstrates that politics unfortunately play a too big of a role in these cases.

Nonetheless, today was a good day for religious freedom, even if the victory was won by a narrow 5-4 vote.

One woman's story: I don't take birth control to prevent myself from getting pregnant -- as a matter of fact, I don't have sex. I take it because I have polycystic ovarian syndrome. I have very irregular periods, sometimes they're very heavy and I have male-pattern facial hair growth because of that, and I take the pill for the hormones, which help regulate that. It makes my symptoms much lighter, and it makes me not have a goatee, like a man.

"Before I had insurance, it was $130 a month for the pill, so it was a huge issue: Do I live with these symptoms and put up with it, or do I not make my rent this month so I can live a normal life? Now, I have health insurance through an Obamacare plan and it costs me $4 a month."

"Allowing a corporation, through either shareholder vote or board resolution, to take on and assert the religious beliefs of its shareholders in order to avoid having to comply with a generally-applicable law with a secular purpose is fundamentally at odds with the entire concept of incorporation." 44 law professors

About Me

I have been an attorney since the Fall of 1987. I have worked in every branch of government, including a stint as a Deputy Attorney General, a clerk for a judge on the Indiana Court of Appeals, and I have worked three sessions at the Indiana State Senate.
During my time as a lawyer, I have worked not only in various government positions, but also in private practice as a trial attorney handing an assortment of mostly civil cases.
I have also been politically active and run this blog in an effort to add my voice to those calling for reform.